The recent decision of the Cayman Islands Court of Appeal in The International Banking Corporation BSC (In Administration) v Ahmad Hamad Algosaibi & Brothers Company has clarified the proper approach to requests by third parties for access to documents deployed in the course of a trial and transcripts of proceedings. It is now clear that, in many cases, such material can be regarded as fair game for third parties who can demonstrate a genuine interest in a case.
The International Banking Corporation ("TIBC") was a failed Bahraini bank closely involved with the events which formed the subject matter of the fraud litigation in Ahmad Hamad Algosaibi & Brothers Company v SAAD Investments Company, the largest case ever heard in the Cayman Islands in which the trial alone lasted more than a year and the judgment ran to over 1300 pages. TIBC was not itself party to that claim but, involved in overseas satellite litigation, its Administrators applied to the Grand Court for disclosure of the evidence that had been heard in the course of the main trial.
Whilst it was common ground that TIBC was a party with a legitimate interest and purpose in seeking such disclosure, it proved impossible to broker an agreement between the various parties and consequently the trial judge, Smellie CJ, determined that whilst TIBC was entitled to copies of all unsealed statements and affidavits which were directed to stand as evidence in chief at trial and made reference to TIBC, it could not obtain any documents referred to in those statements, documents that had been referred to in the course of the proceedings or a transcript of cross-examination.
In reaching that decision, the Chief Justice noted that recordings of civil proceedings in the Cayman Islands are arranged by the parties at their own expense, and in the absence of an agreed application it is the judge's own notes which will form the official record of proceedings. No such agreement had been reached here, and thus it was concluded that the Court had no power to order the disclosure of a privately produced transcript. Insofar as the application for documents was concerned, he held that access under the principles of open justice would ordinarily be limited to public interest cases, and could only be permitted in cases of private interest in the rarest of cases. The open justice principle, it was said, "is not meant to be an unruly charter for fishing expeditions in aid of possible third party proceedings".
On appeal however, the Court of Appeal adopted a markedly more liberal approach, starting from the point that disclosure was a default position, unless there were sufficiently strong countervailing factors. The public interest/private interest distinction gained little traction, the Justices instead focusing upon the general public right to understand and scrutinise the determination of issues in litigation. A personal and private interest in proceedings was regarded as perfectly capable of establishing a sufficient interest to warrant disclosure, albeit subject to considerations of proportionality, and the "default position" was reflected by the burden of proof being placed firmly on the shoulders of the party seeking to resist disclosure.
Application of those principles led the Court of Appeal to conclude that the Chief Justice's approach was overly restrictive. In relation to the witness statements, disclosure was extended to include all which stood as evidence in chief irrespective of whether or not they referred to TIBC, the aim being to provide a "full and adequate understanding of the content of the proceedings". That conclusion was fortified from a practical point of view by the knowledge that the statements in the case had been uploaded to an electronic database and thus could be collated in short order.
As to the transcripts and ancillary documents, following a detailed review of the English cases, the Court concluded that a "proper" understanding of the case might well in some situations require the provision of documents that had been the subject of cross examination, and also that where a transcript had been prepared with the express intention of ensuring that an accurate record of proceedings was available, the right of the public and those with a legitimate interest to know what is happening in the course
of proceedings led as a matter of common sense to the conclusion that such a record should be available. The private nature of the transcription arrangement, insofar as it was relevant, fell to be considered only in respect of the cost of provision rather than provision per se, and whilst the public or private nature of the interest upon which an application for disclosure was undoubtedly relevant it was not the only, or even the primary, factor that the Court should take into account. Where a party could demonstrate a real interest, whatever the basis of that might be, the broad principle of open justice was not satisfied merely by the fact that proceedings had taken place in public, but also supported access to relevant material after the event in the absence of good reason to the contrary.
Here, the Court of Appeal determined that TIBC should have access to all of the witness statements relied upon at trial, and also the transcript of proceedings (albeit on payment of some US$75,000). However disclosure was stopped short of provision of the ancillary documents to on the basis that they were not necessary to provide an adequate understanding of proceedings, and would give rise to significant duplication and repetition.
The approach of the Court of Appeal to witness statements is hard to criticise: whilst the practice of allowing witness statements and affidavits to stand in lieu of evidence in chief has a great deal of practical utility in saving court time and costs, it is premised upon the understanding that the contents of those documents will be treated as though they have been read out in open court. It is only consistent with that understanding that the contents of the statement should be available to third parties in order to mirror as closely as possible the position had the evidence actually been read out.
In respect of transcripts, the position is more difficult. On the one hand, there is an undoubted practicality to the Court of Appeal's decision in this regard: given the cost and logistical complexity of producing a transcript, it might seem unreasonable to require an interested third party to make its own arrangements in this regard. On the other hand, having acknowledged that the copyright in the transcript was owned by the parties who had arranged its production, the Court's decision arguably trespasses upon that copyright by ordering that it be licensed to a third party on specified commercial terms. No clear legal rationale for that assumption of rights was given.
The Court of Appeal's decision can be seen as rooted as much in pragmatism as strict principle, tacitly acknowledging both that it is not realistic to expect non-parties to sit in court throughout case in order to find out what is happening and that where Court resources do not extend to providing an official transcription service, it would be absurd if the result was a gallery full of stenographers each instructed by a different interested party. That pragmatism is also discernible in the obvious concern to maintain a sense of proportionality in relation to access to ancillary documents. Nevertheless, it is clear that in the Cayman Islands a hearing "in public" means just that, with records of public civil proceedings generally likely to be accessible to those with more than an idle interest in their subject matter. That may well stick in the craw of those parties bearing the greater part of expense of producing that record, all the more so where the third party may be potentially adverse; however the decision is a clear indication that the principle of open justice will not be lightly displaced, an approach that is of significant assistance to any non-party with an interest in a case.
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